What is the significance of the High Court’s decision not to allow an appeal in the Liu v The Age case?

The High Court decision means that it shares Justice McCallum’s interpretation of the NSW version of the journalistic ‘shield law’ provision as part of the Evidence Act 1995, NSW. On balance the justice decided that the reporters’ source/s do not face harm by being identified to an extent that the shield law should override Liu’s legal right to access the documents. The Justice in part based her ruling on the sources not asking for anonymity in their early correspondence with the reporters.

2. Why is it important for journalists to be able to protect their sources?

It’s important to remember that journalists do not grant anonymity lightly. A named source will always lend more credibility to the story (a prominent example is the Edward Snowden NSA disclosure). However, when all other information avenues have been explored and you’re faced with publishing or not publishing a story in the highest public interest (such as the Liu and Fitzgibbons story), to grant anonymity is at times the only option left.

If journalists do not stick to their confidentiality agreements and start naming sources, the flow of information from whistleblowers would slow to a trickle and make it harder for journalists to perform one of their most important tasks – scrutinising power.

3. The NSW shield laws did not protect the journalists in the Liu v The Age matter – Are shield laws enough to allow journalists to protect their sources, or is further law reform needed?

It’s too early to say. A recent ruling in WA, where Gina Rinehart wanted the court to order West Australian Newspaper journalist Steve Pennells to disclose his sources, ruled in favor of Pennells based on the new WA shield law. So, we now have two rulings indicating different interpretations of shield laws. Based on this it would have been very helpful if the High Court had decided to hear the Liu v Fairfax case to provide further direction. We need to see more cases before we can say if the shield laws are working as intended.

What can be concluded is that when it comes to government agencies pursuing anonymous media ‘leaks’ (such as the Harvey and McManus case and the Perth Sunday Times police raid), the shield laws are only addressing the symptom and not the cause. The issue in these cases are the draconian and out-dated sections of the Criminal Codes prohibiting public servants to communicate most government information to journalists (or members of the public) without the permission of a supervisor or face hefty fines and/or prison terms. Media watch raised this issue on May 12, 2008, in episode 13. These sections of the Criminal Codes should be reformed to allow and encourage public servants to communicate maladministration and corruption. The current laws are encouraging the opposite – secrecy.

4. Should journalists be allowed by law to protect their sources under any circumstance?

No, and this is where it becomes tricky. The Liu v Fairfax case is an example of this. Liu claims the documentation is a fake and an attempt to defame her. The reporters go to great lengths to explain how they have thoroughly verified the sources and the validity of the documents. It’s word against word. Some observers would like to see Australia go down the path of the most far-reaching source protection systems such as in Scandinavia. These laws are heavily weighted in favour of the sources and the journalists and there is no evidence to suggest that his has caused misuse of journalist-source privilege to defame individuals.

However, the question remains: how can you determine if the reporters are right without disclosing their sources? As the shield laws stand this is close to impossible to do. The two following options would mean amendments to the Acts.

Option one: allow the presiding judge to review the documents to determine authenticity. The judge should be bound not to reveal the identity of the sources regardless of the ruling.

Option two: allow for an independently appointed judge or legal panel to review the documents to verify their authenticity. This arbiter/panel would be compelled by law to not disclose the names of the sources regardless of the ruling.

The problem with the suggested options is that the more people that know the names of the sources, the greater the risk of disclosure.

5. If not, what limits should apply?

None, this needs to be determined on a case-by-case basis. This again illustrates the importance of journalists taking extreme care when assessing and documenting their investigations and to not grant anonymity lightly.

The only limitations that apply in, for instance Sweden, are in cases of alleged high treason and matters of utmost national security.

6. What is likely to happen in the Liu v The Age case now the High Court has ruled out an appeal?

The NSW Supreme Court ruling stands and the reporters will be ordered to disclose their documentation to Helen Liu. If the reporters refuse they will be in contempt of court and could face both fines and imprisonment. Putting journalists in jail for doing their job is, however, a PR disaster for both the justice system and the government as we saw in the 1990s when a few Australian journalists served short jail terms for not disclosing sources.

This will be a very important case for journalistic source protection in Australia. Based on Baker, McKenzie and Dorling’s experience and earlier record as long-standing multi award winning investigative reporters, it’s hard to believe that they would publish anything without double and triple verification.

It’s not unreasonable to ask of the justice system and lawmakers to amend the shield laws to better protect journalists, sources and the individuals being reported on.

Fining or putting journalists in jail for doing their job is not an option and frankly an international embarrassment.